CJEC, 3rd chamber, March 6, 1980, No 120-79

THE COURT

1 By order of 27 june 1979 which was received at the court on 30 july 1979 the bundesgerichtshof submitted to the court of justice, under the protocol of 3 june 1971 on the interpretation of the convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter referred to as ' ' the convention ' '), two questions on the interpretation of subparagraph (1) of the second paragraph of article 1 and subparagraph (2) of article 5 of the convention.

2 The first question is directed towards ascertaining whether the convention, and in particular article 31 thereof which relates to the enforcement of judgments given in another contracting state, apply to ' ' the enforcement of an interlocutory order made by a french judge in divorce proceedings, whereby one of the parties to the proceedings is awarded maintenance payable monthly ' ' or whether, on the contrary, such a judgment must be considered as not being a ' ' civil matter ' ' within the meaning of subparagraph (1) of the second paragraph of article 1 of the convention. This question is raised in the context of proceedings relating to the enforcement in the federal republic of germany of an order made on 18 may 1977 by the judge in matrimonial matters at the tribunal de grande instance, paris, awarding the wife, pursuant to article 253 et seq. Of the french civil code, an interim maintenance allowance pending divorce.

3 The second question asks, likewise, whether the convention - in particular its provisions relating to the enforcement of judgments - is applicable ' ' to the payment of interim compensation, on a monthly basis, granted to one of the parties in a french judgment dissolving a marriage pursuant to article 270 et seq. Of the code civil ' '. In terms of the said article 270, the payment in question is intended to compensate, so far as possible, for the disparity which the breakdown of the marriage creates in the parties ' respective living standards. Article 271 provides further that the compensatory payment is to be fixed according to the needs of the spouse to whom it is paid and the means of the other, having regard to the position at the time of divorce and its development in the foreseeable future.

4 According to the first paragraph of article 1 of the convention its scope extends to ' ' civil and commercial matters ' '. However, certain matters, although falling within that concept, have been removed from that field, by way of exception, by the second paragraph of the same provision. Such is the case in regard to, inter alia, the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession.

5 It is well settled that the subject of maintenance obligations itself falls within the concept of a ' ' civil matter ' ' and that since it is not taken out by the exceptions provided for in the second paragraph of article 1 of the convention it therefore falls within the scope of the convention. Article 5 (2) of the convention provides confirmation, should such be necessary, that is so falls. On the other hand, the ' ' compensatory payments ' ' provided for in article 270 et seq. Of the french civil code and referred to in the second question are concerned with any financial obligations between former spouses after divorce which are fixed on the basis of their respective needs and resources and are equally in the nature of maintenance. They are therefore civil matters within the meaning of the first paragraph of article 1 of the convention and accordingly come within the scope of the convention since they have not been excepted by the second paragraph of that article.

6 Accordingly, all that has to be considered is whether the fact that the maintenance judgment is given in the context of divorce proceedings - which unquestionably concern the status of persons and are consequently outside the field of application of the convention - has the consequence that the maintenance proceedings must, as being ancillary to the divorce proceedings, also be excepted from that field of application, with the result that they may not benefit from inter alia the simplified procedures for recognition and enforcement provided by articles 26 to 30 and articles 31 to 45 respectively.

7 In so far as its field of application is concerned, no provision of the convention links the treatment of ancillary claims to the treatment of principal claims. On the contrary, various provisions confirm that the convention does not link the treatment of claims classified as ' ' ancillary ' ' to the treatment of the principal claim. In particular, such is the case with article 42 which provides that, where a foreign judgment has been given in respect of several matters and enforcement cannot be authorized for all of them, the court shall authorize enforcement for one or more of them, and with article 24, which provides that application for such provisional, including protective, measures - which are, by definition, ancillary measures - as may be available under the law of a contracting state may be made to the courts of that state ' ' even if, under this convention, the courts of another contracting state have jurisdiction as to the substance of the matter ' '.

8 These provisions demonstrate unequivocally that the general scheme of the convention does not necessarily link the treatment of an ancillary claim to that of a principal claim. In accordance with that principle, and in regard precisely to the convention ' s scope, a criminal court, the judgments of which, when given in its proper area of activity, are clearly excluded from the scope of the convention, has jurisdiction conferred upon it by article 5 (4) of the convention to entertain an ancillary civil claim, with the result that a judgment given on that claim will benefit from the convention as regards its recognition and enforcement. That provision thus expressly provides that a claim ancillary to criminal proceedings, which are obviously excluded from the scope of the convention, comes within it.

9 Ancillary claims accordingly come within the scope of the convention according to the subject-matter with which they are concerned and not according to the subject-matter involved in the principal claim. It was by way of applying that rule that the court held in its judgment of 27 march 1979 in case 143-78 de cavel (1979) ecr 1055, involving the same parties, that an application in the course of divorce proceedings for placing assets under seal did not come within the scope of the convention, not on account of its ancillary nature, but because it appeared that, having regard to its true function, it concerned, in that case, rights in property arising out of the spouses ' matrimonial relationship.

10 On the other hand, the court has already recognized in that same judgment that the interim or final nature of a judgment is not relevant to whether the judgment comes within the scope of the convention. Accordingly, the argument to the effect that the maintenance obligation is only an interim one pending divorce must be rejected.

11 It follows from the foregoing considerations that the scope of the convention extends also, and for the same reasons, to maintenance obligations which legislation or the court places on spouses for the period after divorce.

12 The answer to the questions put by the bundesgerichtshof should therefore be that the convention is applicable, on the one hand, to the enforcement of an interlocutory order made by a french court in divorce proceedings whereby one of the parties to the proceedings is awarded a monthly maintenance allowance and, on the other hand, to an interim compensation payment, payable monthly, awarded to one of the parties by a french divorce judgment pursuant to article 270 et seq. Of the french civil code.

13 The costs incurred by the commission of the european communities, which has submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court (third chamber),

In answer to the questions submitted to it by the bundesgerichtshof by order of 27 june 1979 received at the court on 30 july 1979, hereby rules:

The convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (english version, official journal 1978 l 304, p. 36) is applicable, on the one hand, to the enforcement of an interlocutory order made by a french court in divorce proceedings whereby one of the parties to the proceedings is awarded a monthly maintenance allowance and, on the other hand, to an interim compensation payment, payable monthly, awarded to one of the parties by a french divorce judgment pursuant to article 270 et seq. Of the french civil code.